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HomeMy WebLinkAboutRESOLUTION NO. 2009-44 RESOLUTION NO. 2009-44 A RESOLUTION APPROVING THE WATER TOWER LEASE WITH LINN COUNTY WHEREAS, Linn County desires to place antennas on the top of the City of Fairfax's water tower; and WHEREAS, Linn County desires to place a 10' x 12' enclosure near the City of Fairfax's water tower for a transmitter and any related equipment; and WHEREAS,the placement of these antennas and enclosure is for a public purpose; and WHEREAS, the City of Fairfax and Linn County have drafted a Water Tower Lease and have come to an agreement about the responsibility of all costs involved in this project. NOW, THEREFORE, BE IT RESOLVED, that the City of Fairfax agrees to enter into the Water Tower Lease with Linn County. BE IT FURTHER RESOLVED, by the City Council of the City of Fairfax, Iowa, that the Mayor and City Clerk are hereby directed to certify this resolution of approval and the Mayor is authorized to sign the Water Tower Lease with Linn County. Passed and approved this 8th day of September, 2009. AYES: Beer, Frieden, Rabe, Magers, and Wainwright NAYS:None ABSENT: None Bi 1 Voss, Mayor ATTEST: C thia Stimson, ity Clerk WATER TOWER LEASE THIS WATER TOWER LEASE (the "Lease") is effective the day of , 2009, between the City of Fairfax, Iowa, a municipal corporation, ("Landlord") and Linn County, Iowa, a municipal corporation ("Tenant"). In consideration of the terms and covenants of this Lease, and for other good and valuable consideration, the parties agree as follows: A. Premises. Subject to the terms and conditions of this Lease, Landlord leases to Tenant and Tenant leases from Landlord a portion of ground space owned by Landlord that is approximately 10'x12' (the "Property") and is adjacent to the Landlord's water tower that is located at 910 2nd Street in the city of Fairfax, Iowa(the "Tower"). The Property is subject to all existing easements, covenants, conditions, and restriction of record, if any. Landlord also leases to Tenant and Tenant leases from Landlord certain space on the Tower for the placement of a communications antenna. Attached hereto as Exhibit"A" is a more detailed description of: (i) The location of the 10'x12' Property ; (ii) Where the communications antenna will be placed on the Tower; (iii) The size, weight and other relevant physical properties of the antenna that will be placed on the Tower; and (iv) The manner in which the antenna will be placed on the Tower. The use of that portion of the Tower as depicted in Exhibit"A" and the Property, together with easements for access and utilities, shall be collectively be referred to hereinafter as the "Premises." B. Term. The term of this Lease shall commence on the date set forth in the opening paragraph(the "Commencement Date"), and terminate in ninety (90) days upon either party providing written notice to the other party of such termination. C. Permitted Use. The Premises may be used by Tenant for the transmission and reception of radio communication signals and for the construction, maintenance, repair or replacement of related facilities, antennas, equipment or buildings and related activities. Tenant may use the Premises to transmit radio communications signals only on the frequencies and at the output power levels specified in Exhibit B (the "Radio Configuration"). Tenant shall not change the Radio Configuration without obtaining written permission from the Landlord. Any request to change the Radio Configuration must be made at least sixty(60) days in advance of the proposed change. Tenant also shall be required to notify Intermec Technologies Corporation, Attention: Legal Dept., 550 Second Street S.E., Cedar Rapids, IA 52401 before seeking permission to change the Radio Configuration. Tenant shall obtain, at Tenant's expense, all necessary approvals and structural analysis and may (prior to or after the Commencement Date) obtain a title report, perform environmental and other surveys, soil tests, and other engineering procedures on, under and over the Property, necessary to determine that Tenant's use of the Premises will be compatible with Tenant's engineering specifications, system, design, and operations. Landlord agrees to reasonably cooperate with Tenant(at no cost to Landlord), where required,to perform such procedures or obtain necessary approvals. Tenant shall not interfere with the Landlord's purpose for the Property of providing water to the residents of the City of Fairfax. If Tenant does interfere, Landlord shall notify Tenant of such interference and Tenant shall immediately terminate the interference. D. Rent. Tenant shall pay Landlord, as Rent, one dollar($1.00) per year ("Rent"). Rent shall be payable in advance beginning on the Commencement Date and thereafter on each annual anniversary of the Commencement Date to Landlord at Landlord's address specified in Section K below. E. Radio Frequency (RF) Interference. Tenant shall not use the Premises in any way which creates radio frequency interference with any radio equipment or transmissions of Landlord on the Premises, provided such radio equipment or transmissions are operated in compliance with applicable federal, state and local law and FCC regulations. Similarly, Landlord shall not use, nor shall Landlord permit its tenants, licensees, employees, invitees or agents to use, any portion of Landlord's properties in any way which creates radio frequency interference with the operations of Tenant. F. Improvements; Utilities; Access. (i) Tenant shall have the right, at its expense, to erect and maintain on the Property a 10'x12' enclosure, at an exact location as agreed to by both parties, for a transmitter and any related equipment. Tenant shall remove the enclosure and any of its contents upon termination of this Lease, at Tenant's sole expense, and Tenant shall return the Premises to the condition which existed prior to the creation of the enclosure, at Tenant's sole expense. (ii) Tenant shall have the right, at its expense and upon consent by the Landlord(after a written plan is submitted to Landlord by Tenant detailing Tenant's plans), to erect and maintain on the Premises improvements, personal property and facilities necessary to operate its system, including without limitation any number of radio transmitting and receiving antennas, related cables and utility lines, and an electronic equipment shelter(collectively the "Antenna Facilities"). The Antenna Facilities shall be initially configured generally as set forth in Exhibit"B". Tenant shall have the right to replace or upgrade the Antenna Facilities at any time during the term of this Lease upon consent from Landlord. Tenant shall cause all construction to occur lien-free and in compliance with all applicable laws and ordinances. The Antenna Facilities shall remain the exclusive property of Tenant. Tenant shall remove the Antenna Facilities upon termination of this Lease. Tenant shall be responsible for all repairs to the Antenna Facilities at Tenant's sole expense. Tenant shall remove the Antenna Facilities upon termination of this Lease, at Tenant's sole expense, and Tenant shall return the Premises to the condition which existed prior to the installation of the Antenna Facilities, at Tenant's sole expense. (iii) Tenant shall pay any additional utilities charges due to Tenant's use of the Premises. Tenant shall have the right to install utilities, at Tenant's expense and upon Landlord's consent, and to improve the present utilities on the Premises. However, Landlord shall, if feasible and monetarily practicable,permit Tenant to access the existing emergency power generator for use in the event of a power outage. Landlord hereby grants an easement to 2 permanently place any utilities on, or to bring utilities across, the Landlord's property in order to service the Premises and the Antenna Facilities. (iv) As partial consideration for rent paid under this Lease, Landlord hereby grants Tenant an easement of approximately twenty feet in width ("Easement") for ingress, egress, and access (including access as described in Section A), and of approximately ten feet in width to install necessary utilities services to the Premises adequate to service the Premises and Antenna Facilities at all times during the term of this Lease. Upon prior written notice, Landlord shall have the right, at Landlord's sole expense, to relocate the Easement to Tenant, provided such new location shall not materially interfere with Tenant's operations. Any Easements provided hereunder shall have the same term as this Lease. (v) Tenant shall have 24-hours-a-day, 7-days-a-week access to the Premises and Easement at all times during the term of this Lease. All access to the Premises by Tenant shall be subject in each instance to the reasonable security requirements and reasonable rules and regulations from time to time in effect at the Property, of which Landlord shall inform Tenant in writing. G. Early Termination. This Lease may be terminated without any penalty or further liability as follows: (i) Upon thirty(30) days' written notice by Landlord for failure to cure a default for payment of amounts due under this Lease within that 30-day period; (ii) Upon thirty (30) days' written notice by either party if the other party defaults and fails to cure such default within that 30-day period, or such longer period as may be required to diligently complete a cure commenced within that 30-day period; H. Taxes. Tenant shall pay any personal property taxes assessed on, or any portion of such taxes attributable to, the Antenna Facilities. Landlord shall pay when due all real property taxes and all other fees and assessments attributable to the Premises, however, Tenant shall pay as additional Rent, any increase in real property taxes levied against the Premises which is directly attributable to Tenant's use of the Premises or changes to the Premises. In the event that Landlord fails to pay said real property taxes, then Tenant shall have the right to pay, but not the obligation to pay, said taxes and deduct them from Rent amounts due under this Agreement. 1. Insurance. Tenant shall execute the attached Certificate of Self-Insurance (Exhibit"C") which provides that Tenant is self-insured with regards to general liability claims. J. Hold Harmless. Tenant agrees to hold Landlord harmless from claims arising from the installation, use, maintenance, repair or removal of the Antenna Facilities or Property, except for claims arising from the negligence or intentional acts of Landlord, its employees, agents or independent contractors. Tenant's responsibility for all injuries to property 3 and to person arising from the installation, use, maintenance, repair or removal of the Antenna Facilities or Property shall be to the full extent permitted by Chapter 670 of the Iowa Code. K. Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed given if personally delivered or mailed, certified mail, return receipt requested, or sent by overnight carrier to the following addresses: If to Tenant: Administrative Offices of Linn County, Iowa 930 First Street SW Cedar Rapids, IA 52404 If to Landlord: Fairfax City Hall 525 Vanderbilt Street PO Box 337 Fairfax, IA 52228 L. Quiet Enjoyment, Title and Authority. Landlord covenants and warrants to Tenant that(i) Landlord has full right, power and authority to execute this Lease; (ii) it has good and unencumbered title to the Premises free and clear of any liens or mortgages, except those disclosed to Tenant which will not interfere with Tenant's rights to or use of the Premises; (iii) execution and performance of this Lease will not violate any laws, ordinances, covenants, or the provisions of any mortgage, lease, or other agreement binding on Landlord. Landlord covenants that at all times during the term of this Lease, Tenant's quiet enjoyment of the Premises or any part thereof shall not be disturbed as long as Tenant is not in default beyond any applicable grace or cure period. M. Assignment. Tenant may not assign this Lease. N. Successors and Assigns.. This Lease shall run with the Property, and shall be binding upon and inure to the benefit of the parties,their respective successors, personal representatives and assigns. O. Miscellaneous. i. The substantially prevailing party in any litigation arising hereunder shall be entitled to its reasonable attorney's fees and court costs, including appeals, if any. ii. This Lease constitutes the entire agreement and understanding of the parties, and supersedes all offers, negotiations and other agreements. There are no representations or understandings of any kind not set forth herein. Any amendments to this Lease must be in writing and executed by both parties. iii. If either party is represented by a real estate broker in this transaction, that party shall be fully responsible for any fee due such broker, and shall hold the other party harmless from any claims for commission by such broker. 4 iv. Each party agrees to cooperate with the other in executing any documents necessary to protect its rights or use of the Premises. A Memorandum of Lease may be recorded in place of this Lease, by either party. V. This Lease shall be construed in accordance with the laws of Iowa. vi. If any term of this Lease is found to be void or invalid, such invalidity shall not affect the remaining terms of this Lease, which shall continue in full force and effect. The parties intend that the provisions of this Lease be enforced to the fullest extent permitted by applicable law. Accordingly, the parties shall agree that if any provisions are deemed not enforceable, they shall be deemed modified to the extent necessary to make them enforceable. vii. The persons who have executed this Lease represent and warrant that they are duly authorized to execute this Lease in their individual or representative capacity as indicated. viii. The submission of this document for examination does not constitute an offer to lease or a reservation of or option for the Premises and shall become effective only upon execution by both Tenant and Landlord. ix. This Lease may be executed in any number of counterpart copies, each of which shall be deemed an original, but all of which together shall constitute a single instrument. LANDLORD: CITY OF FAIRFAX, IOWA By: William Voss, Mayor TENANT: LINN COUNTY, IOWA By: Its: 5 ACKNOWLEDGMENT STATE OF IOWA ) ) ss: COUNTY OF LINN ) This instrument was acknowledged before me on the day of , 2009, by William Voss, as Mayor of the City of Fairfax, Iowa. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written. Notary Public in and for the State of Iowa My Commission Expires: STATE OF IOWA ) ) ss: COUNTY OF LIMN ) This instrument was acknowledged before me on the day of , 2009, by , as of Linn County, Iowa. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written. Notary Public in and for the State of Iowa My Commission Expires: Y:IWPVZJSIFAIRFAXIWater Tower Linn ColFairfax water tower lease v4 090809.doc 6 EXHIBIT A The location of the 10'x12' Property, is more particularly described or depicted as follows: The location of the communication antenna on the Tower, is more particularly described or depicted as follows: The size, weight and other relevant physical properties of the antenna that will be placed on the Tower, is more particularly described or depicted as follows: The manner in which the antenna will be placed on the Tower, is more particularly described or depicted as follows: 7 EXHIBIT B Site Plan and Equipment: Radio Configuration: The following describes the approved Radio Configuration as of the effective date of the Lease: 1. One UHF transmitter operating on 460.200 MHz with an approximate ERP of 550 watts in the azimuth of 60 degrees (magnetic) and an approximate ERP of 240 watts in the azimuth of 270 degrees magnetic. 2. One microwave hop transmitter 4.9Ghz to 6Ghz (TBD)with an azimuth of approx 45 to 60 degrees magnetic using a solid parabolic dish & radome 3' to 6' in diameter (dependant on freq range selected). 8 EXHIBIT C County of Linn, Iowa Certificate of Self-Insurance Contact Office: Risk Management 930 1" Street S.W. Cedar Rapids, IA 52404-2161 Date: April 1, 2009 Insured: Linn County, its Elected Officials, Employees and Agents 930 1St S.W. Cedar Rapids, IA 52404 Type of Self-Insurance Coverage General Liability Auto Liability Workers Compensation Description of Operations/Locations: The configuration of Linn County owned communication equipment on a water tower owned and operated by the City of Fairfax. Program Description: This certificate is to confirm that Linn County is self-insured with regards to any and all general liability claims and all automobile claims, including comprehensive and collision. This self-insured status is not the result of a specific action by the Board of Supervisors, but results from Iowa law which provides that political subdivisions are subject to liability for their torts and those of their officers and employees when acting within the scope of their duties (Iowa Code Chapter 670). Should a judgment creditor elect not to issue execution against a municipal corporation, a tax must be levied as early as practicable to pay the judgment(Iowa Code §§ 626.24, 670.10, and 627.18). Certificate Holder County of Linn City of Fairfax 525 Vanderbilt Street Fairfax, IA 52228 Lu Barron, Chairperson Board of Supervisors 9